Howard v. DIRECTV, MasTec

Filing 38

ORDER granting 37 Motion to Dismiss, and directing the Clerk to close this case. Signed by Judge J. Randal Hall on 05/21/2012. (thb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
DANIEL HOWARD,

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Plaintiff,

V.
THE DIRECTV GROUP, INC.,

MASTEC, INC., and AT&T
MOBILITY, LLC,
Defendants.

CV 109-156

ORDER

Presently pending before the Court is Defendant DirectTV, Inc.
("DirecTV") and MasTec North America, Inc.'s ("MasTec") Opposition
to Plaintiff's Motion to Amend, or in the Alternative, Motion to
Dismiss Plaintiff's Second Amended Complaint. (Doc. no. 37.) Upon
due consideration, Defendants' motion to dismiss Plaintiff's Second
Amended Complaint is GRANTED.

I. BACKGROUND
This action arises from the unauthorized installation and
billing of satellite television services and bundled communication
packages. Plaintiff contends that the installation of these
services detrimentally affected his credit. The relevant facts are
set forth below.

A. Factual Background'
1.

Claims Relating to the AT&T 2 Account

On November 14, 2006, unbeknownst to Plaintiff, Defendant AT&T
Mobility, LLC ("AT&T") used Plaintiff's personal credit information
to install and activate a bundled communication package at the
property owned by Richard R. Weiber, Jr. ("Weiber"). Several
months later, BellSouth Telecommunications ("BellSouth") contacted
Plaintiff and informed him of a delinquent account registered at
Weiber's address. The phone number associated with this account
was 706-798-1722. Suspecting that the delinquent account was the
result of identity theft, Plaintiff filed an incident report with
the Richmond County Sheriff's Department.
Plaintiff subsequently received and completed a fraud package
and identity theft affidavit from the BellSouth Risk Management
Center. On March 12, 2007, BellSouth informed Plaintiff that the
706-798-1722

phone

number

was

established

without

his

authorization. As a result, BellSouth employees told Plaintiff
that the delinquent report would not be referred to a collection
agency and would not appear on Plaintiff's credit report.
However, on June 6, 2008, Plaintiff received a collection
letter from Nationwide Recovery System informing him that they had
been retained by AT&T to collect a debt of $447.00.

Plaintiff

1 In deciding this motion to dismiss, the court must accept all facts
alleged in the Second Amended Complaint as true and must construe all
reasonable inferences in the light most favorable to the non-movant. See
Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002)
2 On December 29, 2006, AT&T Mobility, LLC acquired BellSouth
Telecommunications and consolidated the ownership of Cingular Wireless, LLC.

disputed the debt and called the AT&T fraud department, which
stated that the suspected fraud would be investigated. After a
subsequent investigation, AT&T informed Plaintiff that the account
was in fact fraudulent and that he would not be responsible for any
charges .
2.

Claims Relatina to the DirecTV Account

On July 6, 2008, Plaintiff received a letter from the law
office of Mitchell N. Kay, P.C., informing him that the firm had
been retained by DirecTV to collect a debt of $233.60. The letter
stated that Plaintiff owed this amount as a result of services
provided in connection with a DirecTV account identified as
ff62898476-A. 4 Plaintiff contacted the law office and explained that
the billing must have been the result of a mistake. He stated he
never requested or received any services from DirecTV and had no
idea how his name and personal information became affiliated with
any of its accounts. Upon verifying Plaintiff's address and social
security number, the representative concluded that Plaintiff had
opened the account and was therefore responsible for the resulting
debt.
After learning of the pending claim against him, Plaintiff
contacted Experian, a credit reporting agency, and asked that
These factual allegations against AT&T were not raised in either the
original complaint or the First Amended complaint. They were instead raised
for the first time in Plaintiff's Second Amended Complaint. The Court
recognizes that adding a new defendant without leave of Court amounts to an
impermissible amendment. However, the Court addresses the allegations
against AT&T because Plaintiff raises claims against all "Defendants"
generally, and, as explained later in this Order, the Court has determined
that all claims should be dismissed.
Defendant Mastec is the primary installer for the DirecTV Group's
satellite communication system.

3

Experian place a security alert on his account. He also requested
a copy of his credit report. Experian represented that it would
notify the other two major reporting agencies, Transunion and
Equifax, and would advise them to place fraud alerts on Plaintiff's
accounts.
On July 14, 2008, Plaintiff received a credit report that did
not contain any references to pending collection actions or
accounts connected to DirecTV. However, on October 20, 2008,
Plaintiff requested and received a follow-up report. The follow-up
report showed a pending collection action, identified DirecTV as
the creditor, and listed the relevant account number as #62898476.
Upon receiving this report, Plaintiff contacted DirecTV. DirecTV
informed Plaintiff that although an account had been opened using
his personal information, the account had since been closed.
DirecTV personnel connected Plaintiff to its fraud department,
which agreed to investigate the matter. On November 5, 2008,
Plaintiff received a letter from DirecTV regarding the results of
its investigation and informing Plaintiff that it had concluded
that he was not responsible or liable for any debts associated with
account #62898476.
B. Procedural Background
1.

Initial Complaint

On June 22, 2009, Plaintiff, proceeding pro se, brought this
action against DirecTV and NasTec in the Superior Court of Richmond
County, Georgia, based upon allegations that DirecTV willfully and
negligently initiated an erroneous collection action against him.
4

(Compi. ¶ 23.)

According to Plaintiff, in addition to causing

undue stress, the collection action negatively affected his "FICO"
score and damaged his investment business. (Id. IT 19-21.) Based
upon these factual allegations, Plaintiff alleged, inter alia, that
DirecTV violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C.

§ 1681 et seq.

(Id. ¶1[ 22-23.)

On December 11, 2009, MasTec removed the case to this Court.
(Doc. no. 1.)

On December 18, 2009, MasTec filed a motion to

dismiss Plaintiff's Complaint. (Doc. no. 6.) Plaintiff timely
responded to Defendant's motion (doc. no. 10), and, approximately
two months later, filed a motion to amend his complaint (doc. no.
16) . The Court granted Plaintiff's motion to amend (doc. no. 25)
and, consequently, denied MasTec's first motion to dismiss as moot.
2.

First Amended Complaint

On September 22, 2010, Plaintiff filed an Amended Complaint.
(Doc. no. 26.) Based upon the aforementioned acts, Plaintiff
claimed that Defendants violated a series of federal statutes,
including several provisions of the Federal Communications Act
("FCA") and the Consumer Credit Protection Act ("CCPA"). In
support thereof, Plaintiff asserted, inter alia, that Defendants
"omitted procedural guidelines, failed to verify [his] identity,"
"intentionally ignored numerous 'Red Flags,'" and "compromised
Plaintiff['s] personal information," which resulted in a
substantial negative impact on his credit score that detrimentally
affected his property management business. (Am. Compi. IT 24 & 26.)

Defendants subsequently filed a motion to dismiss the Amended
Complaint.

(Doc. no. 29.)

On September 2, 2011, the Court entered an Order dismissing
with prejudice all of Plaintiff's claims brought pursuant to the
FCA. (Doc. no. 35.) The Court also dismissed the CCPA claims
without prejudice because Plaintiff failed to provide sufficient
factual allegations to enable the Court to determine whether
Plaintiff had a viable claim under 15 U.S.C. § 1631 and 1667.
Moreover, the Court dismissed Plaintiff's state law defamation
claim without prejudice.

Plaintiff was given fourteen days from

the date of the Order to file a motion seeking leave to amend his
complaint. The Court cautioned that "any amendments must be
strictly limited to Plaintiff's state law 'defamation' claim and
those claims brought pursuant to 15 U.S.C. § 1631(b), 1667a, and
1681s-2(b) .,,5
3.

(Doc. no. 35 at 22 n. 7.)

Second Amended Complaint

On September 16, 2011, Plaintiff filed his Second Amended
Complaint .6 (Doc. no. 36.) Plaintiff asserts the same factual
basis against DirecTV and Mastec and also adds AT&T as a Defendant
in this action. He asserts that AT&T, like the other Defendants,
negligently compromised his personal information. (Sec. Am. Compi.

Although Plaintiff was given leave to amend his § 1631(b) and 1667a
claims, the Second Amended Complaint does not assert claims under either of
these provisions.
6

The Court is aware that Plaintiff did not file a motion seeking leave
to amend his complaint as directed in the Court's September 2, 2011 Order.
Despite this procedural defect, the Court will consider the Second Amended
Complaint.

6

IT 38-48.) Plaintiff alleges that all Defendants violated the FCA
by negligently utilizing his personal information without proper
authorization. (Id. ¶ 37.) Plaintiff once again claims that
"Defendants willfully and negligently submitted negative or adverse
information to [a credit reporting agency] without notifying
[Plaintiff]" in violation of 15 U.S.C. § 1681. (Id. ¶ 54.) The
Second Amended complaint also raises claims for negligence, gross
negligence, intentional infliction of emotional distress, negligent
infliction of emotional distress, as well as violations of various
provisions of the Official code of Georgia. These allegations are
discussed in detail below.

IX. MOTION TO DISMISS STANDARD

In considering a motion to dismiss under Rule 12(b) (6), the
court tests the legal sufficiency of the complaint, not whether the
plaintiff will ultimately prevail on the merits. Scheur v. Rhodes,
416 U.S. 232, 236 (1974). The court must accept as true all facts
alleged in the complaint and construe all reasonable inferences in
the light most favorable to the plaintiff. See Hoffman-Pugh, 312
F.3d at 1225. The court, however, need not accept the complaint's
legal conclusions as true, only its well-pled facts. Ashcroft v.
Iqbal, 556 U.S. 662, 677-79 (2009)
A complaint also must "contain sufficient factual matter,
accepted as true, 'to state a claim to relief that is plausible on
its face.'"

Id. at 1940 (citing Bell Ati. Corp. v. Twornbly, 550

U.S. 544, 570 (2007)). The plaintiff is required to plead "factual
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content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged." Iqbal, 129 S.
Ct. at 1940. While there is no probability requirement at the
pleading stage, "something beyond . . . mere possibility . . . must
be alleged." Twombly, 550 U.S. at 557 (citing Durma Pharm., Inc.
v. Broudo, 544 U.S. 336, 347 (2005)).

III. DISCUSSION
A.

Federal Coinxminications Act, 47 U.S.C. § 217

In the Court's September 2, 2011 Order, Plaintiff's 47 U.S.C.
§ 217 claim was dismissed with prejudice, and therefore Plaintiff
is precluded from raising it in his Second Amended Complaint.
However, the Court notes that even if it considered the § 217
claim, it would fail. Section 217 does not provide an independent
cause of action in and of itself. (Doc. no. 35, at 8.) Instead,
its application is dependent upon the identification of another
provision within the FCA that was allegedly violated. (Id.) As
the Court noted in its previous Order and will reiterate now,
Plaintiff fails to identify a single provision within the FCA that
supports his § 217 claim.

Because the Court cannot consider

Plaintiff's § 217 claim standing alone, it should be dismissed.
B.

Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.

In his Second Amended Complaint, Plaintiff alleges various
violations of the FCRA. The FCRA protects consumers from having
inaccurate information about their credit status circulated to
credit reporting agencies.

Pickney v. SLM Fin. Corp., 433 F.
8

Supp. 2d 1316, 1318 (N.D. Ga. 2005) (internal citations omitted)
Under this Act, furnishers of information to credit reporting
agencies have a duty to, among other things, investigate disputed
information and report the results of these investigations to
credit reporting agencies. Id. Plaintiff alleges that Defendants
negligently initiated a collection action against him without
verifying the accuracy of the information and without notifying
him. He claims that this conduct violates H 1681s-2(a),
1681m(d) (1) and 1681m(e) (1) (A) of the FCRA. 7 Defendants, however,
assert that these claims should be dismissed as no private right of
action exists under H 1681s-2(a) and 1681m.
1.

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U.S.C. §

1681s-2(a)

Plaintiff alleges that Defendants negligently submitted
negative or adverse information to a credit reporting agency
without notifying him in violation of 15 U.S.C. § 1681s-2(a) (7) (A).
Section 1281s-2(a) of the FCRA requires furnishers of information
to submit accurate information to credit reporting agencies. Green
v. RBS Nat'l Bank, 288 Fed. Appx. 641, 642 (11th Cir. 2009).
However, the FCRA does not provide a private right of action to
redress such a violation. See 15 U.S.C. § 1681s-2(d); Blackwell v.
Capital One Bank, No. 6:06-cv-066, 2008 WL 793476, at *2 (S.D. Ga.
Mar. 25, 2008) ("[C]laim[s] for failure to provide accurate
information under § 1681s-2(a) must be dismissed because there is

The court notes that Plaintiff was not given leave to amend his
Complaint to add claims under these three provisions of the FCRA. However,
because Plaintiff is proceeding pro se and because Plaintiff was given leave
to amend his claim under § 1681s-2(b) of the FCR1, the Court will consider
the related claims contained in the Second Amended Complaint.

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no private right of action to enforce that duty."); Neal v. Equifax
Credit Info. Servs., Inc., No. 1:03-cv-761, 2004 WL 5238126, at *4
(N.D. Ga. Mar. 11, 2004) ("[E]ver y court that has addressed the
issue in a reported decision has concluded that private plaintiffs
have no cause of action under 15 U.S.C. § 1681s-2(a)."). Thus,
Plaintiff's claim under subsection (a) must be dismissed.
2.

15 U.S.C. § 1681s-2(b)

Although not specifically alleged in the Second Amended
Complaint, Plaintiff appears to also raise a claim pursuant 15
U.S.C. § 1681s-2(b). Section 1681s-2(b) provides that once a
furnisher of information receives notice of a dispute from a
consumer reporting agency, it must conduct an investigation into
the disputed information and report any inaccuracies. Unlike §
1681s-2(a), § 1681s-2(b) creates a private right of action, but
only if the furnisher received notice of the consumer's dispute
from a consumer reporting agency. Green, 288 Fed. Appx. at 642.
Thus, to support an FCRA claim against a furnisher of information,
a private plaintiff must allege that the furnisher, after receiving
proper written notice of a dispute regarding the completeness or
accuracy of information provided by a person to a consumer
reporting agency, did one of the following: (1) failed to conduct
an investigation with respect to the disputed information; (2)
failed to review all relevant information provided by the consumer
reporting agency pursuant to § 1681i (a) (2) of the FCRA; (3) failed
to report the results of the investigation to the consumer
reporting agency; or, (4) if an item of information disputed by a
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consumer is found to be inaccurate, incomplete, or cannot be
verified after any reinvestigation, failed to modify, delete, or
permanently block the reporting of that item of information. See
15 U.S.C. § 1681s-2(b).
The court allowed Plaintiff to amend his Amended complaint
because it did not contain any factual allegations supporting a
claim under § 1681s-2(b). However, the Second Amended complaint
does not cure the deficiencies of the Amended complaint. Plaintiff
has not alleged that any credit reporting agency sent Defendants a
dispute notice, triggering a duty to investigate. Moreover,
Plaintiff does not allege that Defendants failed to conduct a
reasonable investigation or failed in any other way outlined above.
Accordingly, to the extent Plaintiff may be asserting a claim under
§ 1681s-2(b), that claim fails and is dismissed.
3.

15 U.S.C. § 1681m(d) (1)& 1681m(e) (1) (A)

Plaintiff further claims that Defendants negligently completed
a credit transaction not initiated by Plaintiff in violation of §
1681m(d) (1) and failed to maintain reasonable procedures to avoid
identity theft in violation of § 1681m(e) (1) (A). Defendants,
however, contend that there is no private cause of action under §
1681m and that those claims should therefore be dismissed.
Section 1681m provides that civil liability for willful or
negligent non-compliance "shall not apply to any failure by any
person to comply with this section." 15 U.S.C. § 168lm(h) (8) (A).
The FCRA further provides that § 1681m "shall be enforced
exclusively under § 1681s of this title by the Federal agencies and
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officials identified in that section." 15 U.S.C. § 1681m(h) (8) (B).
Thus, there is no private right of action to enforce § 1681m. See,
e.g., Perry v. First Nat'l Bank, 459 F.3d 816, 823 (7th cir. 2006)
(holding "[tllhe unambiguous language of § 1681m(h) (8) demonstrates
that congress intended to preempt private causes of action to
enforce § 1681m"); Floyd-Keith v. Homecomings Fin., LLC, 2:09-cv769, 2010 WL 3927596, at *8 (M.D. Ala. Sept. 17, 2010); Crowder v.
PMI Mortgage Ins. co., No. 2:06-cv-114, 2006 WL 1528608, at *2
(M.D. Ala. May 26, 2006). As such, Plaintiff's claims under §
1681m must be dismissed.
C.

State Law Claims

1.

Defamation claim

Plaintiff also asserts a state law defamation claim against
Defendants. Defendants contend that the defamation claim should be
dismissed because § 1681t(b) (1) (F) of the FCRA preempts all state
law causes of action against furnishers of credit information.
The FCRA contains two preemption provisions. Prior to 1996,
preemption of state law claims by the FCRA was governed only by S
1681h(e). Section 1681h(e) provides:
Except as provided in sections 1681n and 16810 of this
title, no consumer may bring any action or proceeding in
the nature of defamation, invasion of privacy, or
negligence with respect to the reporting of information
against any consumer reporting agency, any user of
information, or any person who furnishes information to a
consumer reporting agency, based on information disclosed
pursuant to section 1681g, 1681h, or 1681m of this title,
or based on information disclosed by a user of a consumer
report to or for a consumer against whom the user has
taken adverse action, based in whole or in part on the
12

report except as to false information furnished with
malice or willful intent to injure such consumer.
15 U.S.C. § 1681h(e). In 1996, Congress enacted the Consumer Credit
Reporting Reform Act of 1996, which introduced another preemption
provision to the FCRA. The relevant portion of § 1681t(b) (1) (F)
provides:
No requirement or prohibition may be imposed under the
laws of any State—
(1) with respect to any subject matter regulated under—

(F) section 1681s-2 of this title, relating to the
responsibilities of persons who furnish information to
consumer reporting agencies, except that this paragraph
shall not apply [to specified provisions of the
Massachusetts Annotated Laws or the California Civil
Code].
15 U.S.C. § 1681t(b) (1) (F)
District courts have developed three different approaches when
applying these two provisions to state law tort claims against
furnishers of information. The "total preemption" approach holds
that § 1681t(b) (1) (F) preempts all state law claims against
furnishers of information to credit reporting agencies. See, e.g.,
Carruthers v. Am. Honda Fin. Corp., 717 F. Supp. 2d 1251 (N.D. Fla.
2010) (adopting "total preemption" approach). The "temporal"
approach holds that state law claims against furnishers of
information that arise after the furnisher receives notice of a
dispute are categorically barred by § 1681t(b)(1)(F), but
preemption of state law claims arising before the furnisher
13

receives notice of a dispute are governed by § 1681h(e).

See,

e.g., Woltersdorf v. Pentagon Fed. Credit Union, 320 F. Supp. 2d
1222 (N. D. Ala. 2004) (adopting "temporal" approach). The
"statutory" approach holds that § 1681t(b) (1) (F) applies to state
statutory law claims, while § 1681h(e) applies to state common law
claims. See, e.g., Johnson v. Citimortgage, Inc., 351 F. Supp. 2d
1368 (N.D. Ga. 2004) (adopting "statutory" approach).
Although the statutory approach has gained widespread
acceptance among the district courts in Georgia, an emerging view
posits that no conflict exists between the two provisions because
of the limited scope of § 1681h(e), which does not apply to FCRA
claims brought against furnishers of information. Spencer v. Nat'l
City Mortgage, No. 1:10-cv-3532, 2011 WL 6396509, at *7 (N.D.

Ga.

Aug. 8, 2011). As one district court in this circuit explained:
The court finds there is no ambiguity in § 1681t(b) (1) (F)
on its face . . . . It appears to this court that §
1681h(e) should only be looked to to determine whether it
conflicts with the plain language of § 1681t(b) (1) (F) if
§ 1681h(e) is otherwise applicable in the case. That is,
this court should not undertake to resolve a theoretical
conflict between statutes unless the statute which
allegedly causes the conflict with the other,
unambiguous, statute applies in the case.
Knudson v. Wachovia Bank, 513 F. Supp. 2d 1255, 1259 (M.D. Ala.
2007). The Fourth Circuit and the Seventh Circuit, the only
circuits that have addressed preemption under the FCRA, also
adopted this approach. See Purcell v. Bank of America, 659 F.3d
622, 625 (7th Cir. 2011); Ross v. Fed. Dep. Ins. Corp., 625 F.3d
808, 814 (4th Cir. 2010)
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This Court finds the emerging approach persuasive and
therefore finds that there is no ambiguity between the two
statutes.

Under this approach, Plaintiff's state law defamation

claim should be dismissed. As set out above, § 1681h(e) limits,
with exceptions, the scope of the immunity it provides to
particular kinds of claims "based on information disclosed pursuant
to section 1681g, 1681h, or 1681m . . . , or based on information
disclosed by a user of a consumer report to or for a consumer
against whom the user has taken adverse action, based in whole or
in part on the report. . . ." See 15 U.S.C. § 1681h(e) . Sections
1681g and 1681h of the FCRA set out the requirements for consumer
reporting agencies when making disclosures to consumers. Section
1681m, as well as the remaining language of § 1681h(e), apply to
users of information that take adverse action against the consumer.
Plaintiff has not alleged that Defendants are consumer
reporting agencies or users of information that took adverse action
against him. Instead, Defendants are furnishers of information.8
Accordingly, § 1681h(e) is not applicable to the facts of this
case, and the liability limitation, and exceptions thereto,
likewise are not applicable. See Knudson, 513 F. Supp. 2d at 125960 (M.D. Ala. 2007). Because those provisions do not apply, the
Court finds no conflict to be resolved with the plain language of §
1681t(b) (1) (F) . The Court must therefore apply the plain language
of the preemption provision in § 1681t(b) (1) (F) to this case.

The FCRA refers to companies that furnish credit information to
consumer reporting agencies as furnishers of information.

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Section

1681t(b) (1) (F)

provides,

"No

requirement

or

prohibition may be imposed under the laws of any State . . . with
respect to any subject matter regulated under . . . section 1681s-2
of this title, relating to the responsibilities of persons who
furnish information to consumer reporting agencies. . . •"

15

U.S.C. § 1681t(b)(1)(F). The subject matter under § 1681s-2
includes a prohibition against furnishers providing "any
information relating to a consumer to any consumer reporting agency
if the person knows or has reasonable cause to believe that the
information is inaccurate." 15 U.S.C. § 1681s-2. Plaintiff
alleges that Defendants generated false, malicious, and defamatory
documents and submitted them to credit reporting agencies. This
conduct falls within § 1681s-2 as it implicates Defendants'
responsibilities as furnishers of information to consumer reporting
agencies.

As such, it is clear that § 1681t (b) (1) (F) preempts

Plaintiff's state law defamation claim.
2.

Miscellaneous State Law Claims9

In the Court's previous Order, it strictly limited any
amendments to Plaintiff's state law defamation claims as well as
those claims brought pursuant to 15 U.S.C. § 1631(b), 1667a, and
1681s-2(b). Because Plaintiff's Second Amended Complaint alleges
six new causes of action aside from those expressly listed in the

Plaintiff alleges that Defendants violated O.c.G.A. § 51-1-2 - 9.
and also raises claims for negligence, gross negligence, intentional
infliction of emotional distress, and negligent infliction of emotional
distress.

16

Court's September 2, 2011 Order, these causes of action amount to
impermissible amendments and are thus dismissed with prejudice.

IV. CONCLUSION
Upon the foregoing, Defendants' motion to dismiss Plaintiff's
Second Amended Complaint is GRANTED. The Clerk is DIRECTED to
CLOSE this case.
ORDER ENTERED at Augusta, Georgia, this

day of May,

2012.

LE J. RAJAL HALL
STATES DISTRICT JUDGE
N DISTRICT OF GEORGIA

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